Michigan Criminal Attorneys BlogThe typical Miranda Warnings read by a police officer when an individual is placed into custody include:
- You have the right to remain silent;
- Anything you say or do may be used against you in a Court of law;
Miranda Rights
Articles Posted in Crimes
Reduced Prison Sentences for Illegal Aliens
In Michigan, pursuant to Michigan Compiled Law 791.234b, a prisoner who has a final order of deportation against him or her by the United States Immigration and Naturalization Service may be paroled after serving at least 1/2 of the minimum sentence imposed by the Court. Persons who have been convicted of first degree homicide, second degree homicide, first degree criminal sexual conduct, second degree criminal sexual conduct, third degree criminal sexual conduct, and/or as a habitual offender are not eligible for this relief.
The parole board will not place a prisoner on parole under this section of the law unless it received from the United States immigration and naturalization service assurances that an order of deportation will be executed or proceedings will promptly commence for purposes of deportation upon release from the Michigan Department of Corrections and that the person will not be released from custody for any reason other than deportation, unless the United States immigration and naturalization service provides to the Michigan Parole Board a reasonable opportunity to be returned to the Michigan Department of Corrections.
A prisoner granted this relief will be placed on parole for a period equal to the remaining balance of his or her maximum sentence. If the prisoner returns illegally to the United States at any time prior than the expiration of the maximum term of parole, a warrant shall be issued to apprehend the individual and the individual’s parole shall be revoked. A prisoner returned under this provision of the law is not eligible for parole or any other release from confinement during the remainder of his or her maximum sentence. Hence, the repercussions for illegally returning to the United States after being granted this benefit are potentially quite severe.
What is ETG Testing
EtG (Ethyl Glucuronide) is a common urine test used by Courts to verify whether an individual on bond or probation has used alcohol in the past 3 to 5 days. EtG testing is usually performed at an outside agency which the Court deems reliable (such as JAMS, NOVA, DOTS, etc.). It is favored in many Courts in lieu of a breathalyzer test based upon how far back it can detect alcohol. A breathalyzer test or a blood test may only be able to detect alcohol for hours based upon the body’s rapid elimination of alcohol from the body. Alcohol is eliminated from the body at a rate of approximately 1 drink per hour.
The EtG test is used to document abstinence from alcohol, to detect relapse, and to screen for drinking problems. Although the EtG test is deemed to be very reliable, there are instances of false positive tests due to a person’s exposure (as opposed to consumption) to alcohol through household cleaning and personal hygiene products. Incidental exposure to vanilla extract can also produce EtG concentrations in excess of 100 ng/ml. Testing that has occurred on cleaning, personal hygiene, and food products to determine incidental or unintentional exposure to alcohol has never produced a positive EtG level greater than 500 ng/ml, and this is sometimes used as a cut off level for Courts.
EtG can also be tested in hair and nails, with a window of detection of 3 months. The bleaching of hair and chlorine exposure may reduce or eliminate EtG presence in hair. However, EtG urine testing is far more commonly used by Courts.
Violation of Probation for Use of Drugs or Alcohol
A very common violation of probation allegation in Michigan and elsewhere is for using or testing positive for drugs or alcohol while on probation. The punishment for drug or alcohol related violation of probation can include one or a combination of any of the following: no sanction; added conditions of probation such as increased drug/alcohol testing, drug treatment, AA/NA meeting attendance, community service, etc.; extending the term of probation; requiring Adult Treatment Court program participation (if the Court has an Adult Treatment Court program); incarceration of various lengths up to the maximum allowable sentence that can be imposed.
Judges differ in philosophy in terms of how they view a positive drug or alcohol test. Some Judges view a relapse, or relapses, as a part of recovery and may be willing to invest additional resources into the probationer to address the drug and/or alcohol problem. Other Judges have a no tolerance view of a positive drug or alcohol test, and want their reputation of strictness to deter a probationer, and others, from use. There are Judges that combine these philosophies and balance rehabilitation with punishment. A Court usually will eventually give up on a person who repeatedly violates their probation, and will usually choose to incarcerate the person.
There are circumstances in which a person will falsely test positive for drugs. A positive drug screen is often sent for additional analysis to confirm or negate the original test. Drug and alcohol testing is viewed as reliable by Courts, and it is often hard to overcome a positive test at a probation violation hearing. Reasons why someone might wrongfully test positive for drugs or alcohol include: the person tested positive for a valid prescription that he or she was taking; the person ingested a substance that could lead to a false positive such as poppy seeds, vanilla, or mouthwash; there was a human error regarding the testing procedures, etc. Any error in drug testing should be contested by an experienced criminal defense lawyer, such as Attorney Daniel Hilf.
Dog Owner Responsibility
Responsible ownership of dogs, cats, and other pets is enforced by local communities. The standards of a particular city may vary from other communities, and it is up to the pet owner to make sure that he or she is in compliance with what is allowed. Some communities view the following as either a civil infraction (a non-criminal offense that subjects the owner to a fine), a criminal offense (usually a misdemeanor punishable by up to 93 days in jail), or in some instances what is illegal in one community is acceptable in another community.
1. No vicious dogs. However, in some communities and with some businesses it may be allowable to have a guard dog, and it is up to the dog owner to see what is lawful. A police dog or law enforcement dog may be trained to bite or exhibit certain aggressive characteristics.
2. No excessively barking dogs.
Parole in Michigan
The Michigan Parole Board is comprised of a ten member board, with each member appointed by the director of the Michigan Department of Corrections (MDOC). The Parole Board meets regularly to review cases and decide whether or not to grant applications for parole.
Generally, in order to become eligible for parole, a felony offender must serve the minimum sentence with the MDOC. Exceptions to this requirement include persons that successfully complete the MDOC SAI prisoner boot camp and after care program, certain drug offenses, and individuals who are pardoned or whose sentence is commuted by the Governor. Prisoners serving only a non indeterminate sentence (sentences that don’t contain both a minimum and maximum sentence, such as prisoners serving time for a felony firearm conviction or an individual serving a HYTA prison sentence) are not subject to parole board review, and are released from custody for that particular offense once the sentence is served.
A prisoner who is serving a life sentence (except for first degree, felony murder, or another similar natural life offense) is interviewed by the Michigan Parole Board only after the prisoner has served either 10 or 15 years of their sentence, depending upon the date of the offense. After the initial Parole Board review, if the life offense prisoner is denied parole, the Parole Board is required to review the case at five year intervals. The Michigan Parole Board has the discretion to parole eligible life offense once the prisoner has served 10 or 15 years if the sentencing Judge does not object. Parole eligible life offenders require a public hearing, input form the victim (if available), and vote of the entire Michigan Parole Board. In most other cases, the Michigan Parole Board decides the fate of a particular parole applicant by a panel of 3 Michigan Parole Board members.
Juvenile Court
Persons younger than 17 years old accused of delinquency often have their matter addressed by the juvenile Court system. Delinquency charges in most cases are not considered as criminal matters, although the charges often stem from behavior that would be prosecuted under criminal law if the person was an adult at the time of the offense. The emphasis of the juvenile Court system is rehabilitation and treatment, rather than punishment.
At the conclusion of a police investigation a request is made of the prosecutor’s office to determine if probable cause exists to go forward with the intervention of the court system. If a probable cause determination is made, a petition is authorized to officially charge the juvenile and that petition is filed in most cases with the Family Division of the Circuit Court. In cases involving serious felony offenses, sometimes the juvenile is subject to being waived over or designated to the adult criminal system.
The first juvenile court proceeding is usually a preliminary hearing, which is similar to an arraignment. At this proceeding the juvenile is read the charge or charges and informed of his or her Constitutional rights. The matter of the amount of bond and any conditions of bond are also addressed at this hearing. If the juvenile is detained, he or she can ask for a probable cause hearing. For all juvenile Court proceedings, the juvenile has the right to legal representation. An experienced juvenile lawyer can be retained to work on behalf of a juvenile to try and obtain the best result possible through trial or otherwise, such as the lawyers at Hilf & Hilf, PLC.
Your Trial Rights for Criminal Cases
There are several important Statutory and Constitutional Rights that every person who is prosecuted in a Michigan Court for a criminal allegation has:
1. Right to be represented by a lawyer. Anytime your liberty is at risk you have an absolute right to have a lawyer defend you. The right to counsel also includes your right to select the lawyer that is right for you provided that you hire that lawyer and the lawyer is not hired on the eve of trial. Some Judges may prevent you from hiring the lawyer of your choice if hiring that lawyer will delay the trial. If you cannot afford a lawyer, you can petition the Court for a public defender. A public defender is not a free lawyer. The Court may order you to reimburse for the cost of the lawyer if it is later determined that you have the ability to do so. You also have the right to represent yourself, if you are foolish enough to choose this option. A person who represents himself or herself is held to the same standard as a lawyer, which places them at a tremendous disadvantage.
2. Right to address bond. Unless the charge allows for a denial of bond (such as treason or murder), you have the right to ask for a bond to be set. The Court will consider a number of factors in making its determination, including the risk of flight and danger to the community.
Top 20 Criminal Trial Rights
There are several important Statutory and Constitutional Rights that every person who is prosecuted in a Michigan Court for a criminal allegation has:
1. Right to be represented by a lawyer. Anytime your liberty is at risk you have an absolute right to have a lawyer defend you. The right to counsel also includes your right to select the lawyer that is right for you provided that you hire that lawyer and the lawyer is not hired on the eve of trial. Some Judges may prevent you from hiring the lawyer of your choice if hiring that lawyer will delay the trial. If you cannot afford a lawyer, you can petition the Court for a public defender. A public defender is not a free lawyer. The Court may order you to reimburse for the cost of the lawyer if it is later determined that you have the ability to do so. You also have the right to represent yourself, if you are foolish enough to choose this option. A person who represents himself or herself is held to the same standard as a lawyer, which places them at a tremendous disadvantage.
2. Right to address bond. Unless the charge allows for a denial of bond (such as treason or murder), you have the right to ask for a bond to be set. The Court will consider a number of factors in making its determination, including the risk of flight and danger to the community.
Top 10 Ways To Successfully Defend A Criminal Case
Although trials don’t always proceed as expected, and the lawyer must often think on his or her feet, there are many steps that a lawyer can take to become prepared for trial in order to give his or her client the best chance to prevail. Preparedness breeds confidence. Confidence increases the chances of achieving a favorable result. The preparedness of the lawyer can sometimes turn a losing trial into a winning case.
First, be familiar with the Judge, his or her Courtroom procedures, and how he or she tends to rule on issues. If the attorney seems unprepared for the Judge, the jury may have a false impression that the lawyer does not have confidence in his or her case which can spell doom for the Defendant. Sometimes a juror’s impression of who the better or more prepared lawyer is matters to how he or she weighs the evidence. In many cases the Prosecutor is very familiar with a particular Judge because the Prosecutor is assigned to the Judge. A Prosecutor that appears regularly before a certain Judge may form a friendship or rapport with the Judge, which may translate on the record.
There are Judges that have a disposition to lean towards the Prosecution even before the trial starts, which is based upon the Judge’s judicial philosophy, conservatism, worry as to public perception that the Judge is not tough on crime, belief that it is easier to rule for the Prosecution and the Prosecution’s position is less likely to be reversed, being jaded by what they see inside and outside the Courtroom, etc., etc. There are a few (not many) Judges that are pro Defense. There are, fortunately, many Judges who try to reach the right decision – regardless if the decision is for the Prosecution or Defense. The Judge assigned to a particular case is randomly assigned when the Court has more than one presiding Judge, and the likelihood of having the case reassigned to a different Judge is very low. Depending upon the circumstances a Defendant who draws a particular Judge is either lucky or unlucky. An individual who hires an experienced criminal defense lawyer can overcome a bad Judge draw.